Per Mr. S.R. Khanzode, Hon’ble Judicial Member :

          These consumer complaints are disposed of by this common order since they involve identical facts and the same question of law.

          The undisputed facts are that in the year 1994, Complainants in all mentioned complaints approached by Opponent No. 1 Mr. Romiel Samuel who is proprietor of K.S. Constructions and later on became partner of Opponent No. 2 R.S. Developers for purchasing flats which are proposed to be constructed in building called as ‘Chitra Kiran’ for the members of the Chitra kiran Co.op. Housing Society (Proposed) in Chitrangan Housing Complex at Gokuldham, Malad (East).  The Complainants accordingly entered into an package scheme with Mr. Romiel Samuel and paid part of the consideration which according to the Complainants is more than 20% than the agreed price.  However,  Opponent No. 1 Mr. Romiel Samuel failed to execute the agreements in favour of the flat purchasers (Complainants).  Subsequently, one of the flat purchaser Dr. B. Karnik filed a civil suit before the Civil Court, Bombay to compel Mr. R.Samuel to execute the agreement.  Said civil suit bears No. 4279/95.  The Complainants in these complaints also intervened and joined themselves as a party alongwith plaintiff in the said suit. Said civil suit was decreed in terms of consent terms and stood disposed of accordingly.  The consent decree dated 21.12.1995 which referred in the complaint itself in para (e) reads as under :

          e) As a result of this Civil Suit, the parties arrived at Consent Terms

              which were taken on record by the City Civil Court.  The terms of the

              Consent Decree dated 21^st December’1995 were as follows :

i)                   KS Constructions  will execute the agreement within

one  month from the date of these Consent Terms ;

ii)                 Within 15 days, the Agreements would be registered with the Registrar;

iii)               Within 6 months  the Commencement Certificate of the BMC and Statutory clearance as required, will be obtained ;

iv)               Within 2 years from the date of Commencement Certificate

the possession of the flats would be handed over;

v)                 An escalation charge of `300/- per sq.ft. will be paid by the purchasers which will be a one-time escalation ; and

vi)               The developer shall not create any third party interest in the said property.

It is further alleged that thereafter on 20.1.1998, Complainants and

their colleagues wrote a letter to the Opponent No. 1 Mr. R. Samuel conveying their intention to opt  out of the building scheme since there were no reasonable prospect of the said building taking any concrete shape and also brought it to the notice of opponent Mr. R. Samuel about non-observance of the consent terms in terms of the decree  passed in the Civil Suit.  In this background, the Complainant and their colleagues demanded refund of money paid by them with 2% interest thereon within 3 weeks from the receipt of the same letter.  Opponent No. 1 Mr. R. Samuel did agree for refund of the consideration accepting their proposal but it is submitted on his behalf that only principal amount be refunded after he gets the  customers.  Thereafter these consumer complaints were filed  inter alia claiming the following reliefs :

a)     To refund to the Complainants the principal amount of `1,54,530/-

alongwith  9% interest p.a. thereon from the dates of respective payment till realization.

b)    To pay to the Complainants a sum of `3,30,000/- being compensation

for the actual financial losses suffered by the Complainants on account

of Leave and License accommodation.

c)     To pay compensation of `2,12,100/- being the difference in old rate

and  the present market rate.

d)    To pay to the Complainants a sum of `1 lakh for mental torture,

hardships  and loss of peace of mind.

e)     To pay a sum of `10,000/- towards cost of this complaint.

f)      Any other relief, as the Hon’ble Forum may deem fit.

We heard both the parties.  Perused the record.

According to  the Complainant, since in view of the section 3 of the Consumer Protection Act, 1986, (hereinafter referred as the Act),it is being an additional remedy and since relief of refund of consideration was not subject-matter in a civil suit, these consumer complaints are tenable.  Further referring to the provision of order II rule 2 of   the Code of Civil Procedure 1908, it is submitted on behalf of the Complainants that those provisions are not applicable to the proceedings before the Consumer Fora and since Civil Procedure Code is a procedurial law, it will not affect any substantial civil rights of the Complainants even though the civil suit filed before the City Civil Court supra, was decreed in terms of the consent terms.  Ld. Counsel appearing for Opponent submitted that in view of the above referred provision of Civil Procedure Code since the right of the party to this dispute get forfeited, the reliefs claimed under this consumer complaint to refund the consideration alongwith interest and alleged deficiency in service on that count cannot be entertained and these complaints are not maintainable accordingly.

Provisions of order II Rule 2 of the Code of Civil Procedure, 1908 particularly sub rule 2 & 3 are relevant in the matter.  They read as under :

“(2) Relinquishment of part of claim : - (1) Every suit shall include

    the whole of  the claim which the plaintiff is entitled to make

    in respect of the cause of action but a plaintiff may relinquish

    any portion of his claim in order to bring the suit within the

    jurisdiction of any Court.

(3) Omission to sue for one of several reliefs :- A person entitled to

    more than one relief in respect of the same cause of action may

    sue for all or any of such reliefs but if he omits, except with the

    leave of the Court, to sue for all such reliefs, he shall not afterwards

    sue for any relief so omitted.”

In the suit case, alongwith reliefs claimed in the nature of specific performance of the oral contracts relating to the purchase of flats and in which and/or by way of alternative relief, a relief for refund of consideration could have claimed.  Provision of section 20 of Specific Relief Act, 1963 even allowed  the  plaintiff to incorporate such relief even at the time of passing judgement i.e. to avoid risk of failure of justice.  Under the circumstances, since even refund of consideration is a relief which can relate to the reliefs claimed in the civil suit and omission to claim such relief will get forfeited the rights of the Complainants/ plaintiffs in the said suit to claim any such relief in the name of deficiency in service under the Act. It may be noted that the Complainants never treated the agreements to purchase flats as cancelled or terminated the agreement. 

For the reasons stated above, we find the present consumer complaints cannot be entertained.  We hold accordingly and pass the following order :

O R D E R

The consumer complaint stands dismissed. 

In the given  circumstances, both the parties to bear their own costs.

Pronounced dated 4.7.2011.